Aida Ndiaye v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: March 30, 2018
• Docket: 17-13102
• Status: Unpublished

Opinion

Case: 17-13102 Date Filed: 03/30/2018 Page: 1 of 3

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-13102 Non-Argument Calendar ________________________

Agency No. A070-702-984

AIDA NDIAYE,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the Board of Immigration Appeals ________________________

(March 30, 2018)

Before MARTIN, JILL PRYOR, and NEWSOM, Circuit Judges.

PER CURIAM: Case: 17-13102 Date Filed: 03/30/2018 Page: 2 of 3

Aida Ndiaye petitions for review of the Board of Immigration Appeals’s

denial of her motion to reconsider its denial of her second motion to reopen her

removal proceedings. The BIA denied Ndiaye’s motion to reconsider because she

failed to identify any error of law or fact in its decision to deny her second motion

to reopen as untimely. After careful review, we dismiss Ndiaye’s petition for lack

of jurisdiction.

This Court may review a final order of removal only if “the alien has

exhausted all administrative remedies available to the alien as of right.” INA §

242(d)(1), 8 U.S.C. § 1252(d)(1). The exhaustion requirement is jurisdictional and

precludes review of a claim that was not presented to the BIA. Amaya-Artunduaga

v. U.S. Att'y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006). To satisfy the exhaustion

requirement, this Court requires that a petitioner raise before the BIA the “core

issue” now on appeal. See Montano Cisneros v. U.S. Att’y Gen., 514 F.3d 1224,

1228 n.3 (11th Cir. 2008).

In her petition to this Court, Ndiaye argues that the BIA abused its discretion

when it denied her motion for reconsideration because under a former version of

the Immigration and Nationality Act there was no time limitation for her requested

relief. That is not, however, the issue that Ndiaye presented to the BIA. There, in

her motion to reconsider, Ndiaye acknowledged that her second motion to reopen

was untimely, but asserted that an exception applied under the current INA.

2 Case: 17-13102 Date Filed: 03/30/2018 Page: 3 of 3

Ndiaye now contends, for the first time, that her motion to reopen was not subject

to any time limitation under an older statutory scheme. Although both arguments

address why her claim should not be time-barred, they rely on different legal

principles and statutory regimes and thus do not present the same “core issue.”

Accordingly, this Court lacks jurisdiction to consider Ndiaye’s petition for

review because she failed to exhaust her administrative remedies.

PETITION DISMISSED.